InDepth
Equal-pay measures will ignite litigation. From National Law Journal.
Two proposed Federal laws designed to make sure that men and women are paid equally have employment lawyers bracing for yet more friction in the workplace.

Management-side lawyers say the equal-pay legislation is bad for business and will trigger more litigation, while employee-rights attorneys say the bills are long overdue.

The two bills passed the House last week and are headed to the Senate. The first, the Paycheck Fairness Act, requires employers to provide a legitimate reason for paying men and women differently for the same job. It also prohibits employers from retaliating against employees who share salary information.

The other is the Lilly Ledbetter Fair Pay Act, which overturns a 2007 U.S. Supreme Court decision that made it harder to sue for pay discrimination by shortening the statute of limitations for filing such claims. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

"I think it's going to add more blood to the system," Andrea Johnson, a management-side lawyer and partner at Houston's Burleson Cooke, said of the pending legislation. "I think it's going to reinvigorate people to look for claims that perhaps they would not have thought about in the past."

Johnson believes both bills will trigger a rash of equal-pay lawsuits. "It'll be the new, en vogue lawsuit," she said.

'A little messy'
Brian LaFratta, a management-side attorney in the Chicago office of Atlanta's Fisher & Phillips, also expects more paycheck challenges under the legislation.

"A lot of people will start thinking for the first time, 'Wait a minute. Have I been screwed all these years?' " LaFratta said. "It's going to serve as a reminder that you may have been wronged, and that it's not too late to do something about it."

LaFratta believes that the Paycheck Fairness Act, in particular, could hurt employers. The act allows for compensatory and punitive damages in equal-pay lawsuits. It also eliminates "weak explanations" for paycheck differences between the sexes, he said.

For example, an employer cannot use a factor such as "college education" to justify why a male cashier makes more than his female counterpart because a degree has nothing to do with the job. The act also will ban the "he's a better negotiator" argument that employers often make when explaining pay differences, he said.

The bill also offers retaliation protection, which, LaFratta believes, will trigger some controversy.

"Imagine this: Tomorrow, some employee at a Fortune 500 company sends a companywide e-mail saying, 'Tell me what you make?' " LaFratta said. "It's going to make things a little messy."

But things have been messy long enough in the paycheck arena, counter employee-rights attorneys, who claim that employers have long hid discriminatory pay practices and offer bogus reasons for paying men and women differently.

"Some people use all kinds of excuses," said employee-rights attorney Dahlia Rudavsky, a partner at Boston's Messing Rudavsky & Weliky. "I do a lot of work with equal-pay cases . . . .Women being underpaid is a persistent problem."

For Rudavsky, the Lilly Ledbetter Act offers a real sign of hope by undoing what she called a "terribly unjust" Supreme Court ruling.

That 2007 ruling involved the case of Lilly Ledbetter, a 19-year manager at a Goodyear plant in Alabama. Upon retirement, she discovered that she made less than her male counterparts and sued for alleged wage discrimination. A jury awarded her $3 million, but the Supreme Court in 2007 threw out the award, finding that Ledbetter had filed her complaint too late.

The court held that a pay discrimination complaint must be filed within 180 days - sometimes 300 - of the specific action that set the discriminatory pay.

The Lilly Ledbetter Act would overturn that ruling by treating each alleged discriminatory paycheck as a new discrimination, thus restarting the 180-day clock for filing a claim.

"This re-establishes the principle that if something is wrong, it's wrong until something it's fixed," Rudavsky said.

Attorney Donna Lenhoff, director of legislative and public policy for the National Employment Lawyers Association, is also looking forward to post-Ledbetter relief.

"The Supreme Court threw a huge monkey wrench into employment discrimination cases [with Ledbetter]," said Lenhoff, a strong proponent of the Ledbetter Act. "It's really about reversing the Supreme Court's decision that unduly cut off claims of paycheck discrimination."

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